On 5 January 2017, the draft act on Feasible and Flexible Work was filed in the Chamber. This draft act has been approved on 23 February. Most provisions enter into force on 1 February 2017.
You will find below an overview of the most important measures that might have an impact on your working time arrangements and might ensure more flexibility within your company. In a future e-zine, we will discuss the other measures from the draft act.
Check what might be interesting for your company so that you can get on board in time.
1. Average weekly working time calculated over the period of 1 year
The act changes the system of the so-called "small flexibility" (article 20bis Labour Act). The reference period for calculating the average weekly working time will now be fixed as a standard at 1 year (as opposed to the former system, wherein the reference period was fixed at a quarter). This can be a calendar year or some other period of 12 months.
This system is not as innovative as previously announced in the media and certainly does not result in the elimination of the 38-hour week. Today, it is already possible to spread the average working time over a longer period (maximum 1 year) through the system of "small flexibility".
Existing systems of small flexibility with a shorter reference period will continue to apply, insofar as these systems have been included in a CBA or the work rules at the latest before 31 January 2017.
No other changes were made to the system of "small flexibility". The following limitations continue to apply:
- The daily working time may not be exceeded by more than 2 hours (the absolute daily limit is 9 hours) and the weekly working time may not be exceeded by more than 5 hours (the absolute weekly limit is 45 hours);
- At the end of the reference period of 1 year, the actually performed working time may not exceed the permitted average weekly working time;
- Implementation through a CBA or the work rules.
This measure will have little impact because a lot of companies already fix the reference period at one year.
2. Credit of 100 overtime hours per year
All employees will receive a credit of 100 overtime hours per year (maximum 360 hours through an industry-level CBA) starting from 1 February 2017: they must not compensate these hours but may choose to receive payment for them. It concerns a new type of overtime hours which is implemented alongside the existing possibilities.
For these hours, the normal overtime pay system (50% or 100% on Sundays and public holidays) remains applicable. The first 25 hours (maximum 60 hours through an industry-level CBA) must, however, not be taken into account for the calculation of the internal limit (see point 3).
The credit of overtime hours must be performed in the context of an individual agreement, which must be drafted in advance. No motivation or specific reason is required.
This measure ensures more flexibility without the necessity of following a specific procedure. The existing systems for overtime hours are in general rigid because prior collective social dialogue/consultation and/or notification to the inspectorate is required.
Draft an individual agreement.
3. Increase of the internal limit to 143 hours
The principle of the internal limit remains unchanged but the limit is now fixed as a standard at 143 hours (as opposed to the former system where the internal limit was generally 78 or 91 hours). The internal limit of 143 hours can be increased through an industry-level CBA.
This measure enables employees to perform up to 143 overtime hours before compensating rest must be granted. This means that employers can employ people in a more flexible way over a longer period of time.
4. Simplification of part-time work
The following statutory provisions concerning part-time work are being simplified and loosened:
- The employer is no longer obliged to include all possible working schedules in the work rules. For variable working schedules, it will be sufficient to provide for a general time period (with some mandatory requirements);
- Variable working schedules must no longer be posted "physically": modern ways of communication are being introduced (such as intranet, email, and so on);
- The part-time employment contract or an extract thereof may be kept on paper or in electronic form;
- Possibility to replace the individual "exceptional register" by a time registration system (if certain conditions are met);
- The system of additional hours will be modified: the credit is expanded to 42 hours instead of 39 hours.
When implementing a new part-time working schedule, employers no longer need to change the work rules. The retention of part-time working schedules and their notification are also being loosened.
The act provides that all current work rules must be in line with the new provisions at the latest at the beginning of 2018.
Modify the work rules.
5. Legal framework for gliding working hours
Many companies already apply a system of ‘gliding’ working hours today (mostly included in the work rules). Strictly speaking, legislation does not permit gliding working hours, but the inspectorate allows it if certain conditions are met.
This practice is now being introduced in law, enabling the possibility to apply gliding working hours within the company in a legally compliant way.
The main provisions are the following:
- Implementation: through a CBA or the work rules;
- Condition: implementation of a time registration system (e.g. a time clock) + a number of mandatory requirements: such as a base and gliding time, average weekly working time, and so on;
- Respecting the working time limits? Average weekly working time must be respected during a reference period (in principle: 3 months). Possibility to transfer a credit of maximum 12 hours (can be raised through a CBA) to the following reference period;
- Due salary? The employer must only pay the "normal" salary. Possibility for the employer to withhold the salary that does not correspond with the actual hours worked (assuming the employee has not worked enough hours at the end of the reference period);
- Which employees can use this possibility? Both full-time and part-time employees with a fixed working schedule;
- What to do with existing systems? The existing systems may continue to be applied insofar as they are implemented in a CBA or the work rules (at the latest before 30 June 2017).
This measure ends the uncertainty which was common to the actual systems of gliding working hours. Among other things, the act enables the employers to withhold the "excessive" salary, if they notice that the employees have not performed enough hours.
Employers who currently have a system of gliding working hours should assess, preferably before 30 June 2017, whether they want to keep the current system or implement the new system.
6. Night work for e-commerce
As the industry-level CBAs that were supposed to enable night work in e-commerce were seldom or never used, the legislator has included the exception for night work in e-commerce directly in the Labour Act.
Night work is now possible for the execution of all logistic and supporting services related to the electronic trade.
This measure will have little impact, as the procedures for the implementation of a working schedule with night work remain unchanged. Social dialogue/consultation remains very important.
7. Expansion of the plus/minus account
The act expands the system of the plus/minus account to all industries which are subject to international competition, contrary to the situation today where it only applied to the automobile industry.
This means that employers can spread the reference period over a span of maximum 6 years instead of 1 year.
This measure will, for now, have no effect. This system must first be permitted and developed at industry level before you can apply it.